(PC) McPherson v. Barr ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL BRUCE ANTHONY No. 2:20-cv-1206-EFB P MCPHERSON, 12 Plaintiff, 13 ORDER AND FINDINGS AND v. RECOMMENDATIONS 14 WILLIAM BARR, 15 Defendant. 16 17 18 Plaintiff, a state prisoner proceeding without counsel in an action brought under 42 U.S.C. 19 § 1983, seeks leave to proceed in forma pauperis (“IFP”). ECF No. 2. For the reasons stated 20 hereafter, the IFP application is granted but the complaint must be dismissed without leave to 21 amend. 22 Application to Proceed in Forma Pauperis 23 Plaintiff’s application makes the showing required by 28 U.S.C. § 1915(a)(1) and (2). 24 Accordingly, by separate order, the court directs the agency having custody of plaintiff to collect 25 and forward the appropriate monthly payments for the filing fee as set forth in 28 U.S.C. 26 § 1915(b)(1) and (2). 27 ///// 28 ///// 1 Screening Requirements 2 The court is required to screen complaints brought by prisoners seeking relief against a 3 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 4 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 5 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 6 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). 7 A claim “is [legally] frivolous where it lacks an arguable basis either in law or in fact.” 8 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 9 Cir. 1984). “[A] judge may dismiss [in forma pauperis] claims which are based on indisputably 10 meritless legal theories or whose factual contentions are clearly baseless.” Jackson v. Arizona, 11 885 F.2d 639, 640 (9th Cir. 1989) (citation and internal quotations omitted), superseded by statute 12 on other grounds as stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000); Neitzke, 490 13 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, 14 has an arguable legal and factual basis. Id. 15 “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the 16 claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of 17 what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 U.S. 18 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 19 However, in order to survive dismissal for failure to state a claim, a complaint must contain more 20 than “a formulaic recitation of the elements of a cause of action;” it must contain factual 21 allegations sufficient “to raise a right to relief above the speculative level.” Id. (citations 22 omitted). “[T]he pleading must contain something more . . . than . . . a statement of facts that 23 merely creates a suspicion [of] a legally cognizable right of action.” Id. (alteration in original) 24 (quoting 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1216 (3d 25 ed. 2004)). 26 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to 27 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. 28 Corp., 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual content 1 that allows the court to draw the reasonable inference that the defendant is liable for the 2 misconduct alleged.” Id. (citing Bell Atl. Corp., 550 U.S. at 556). In reviewing a complaint 3 under this standard, the court must accept as true the allegations of the complaint in question, 4 Hospital Bldg. Co. v. Rex Hosp. Trs., 425 U.S. 738, 740 (1976), as well as construe the pleading 5 in the light most favorable to the plaintiff and resolve all doubts in the plaintiff’s favor, Jenkins v. 6 McKeithen, 395 U.S. 411, 421 (1969). 7 Screening Order 8 Plaintiff’s complaint alleges that since the year he was born – 1986 – the government, 9 through “deceit, manipulation, and neglect,” has poisoned the water with fluoride. ECF No. 1 at 10 3. He claims this was done to “ruin [his] liberty” and has resulted in a mental disorder and 11 anxiety. Id. As relief, he seeks $50,000,000. Id. at 6. 12 The Supreme Court has held that a claim is frivolous “when the facts alleged arise to the 13 level of the irrational or the wholly incredible, whether or not there are judicially noticeable facts 14 available to contradict them.” Denton v. Hernandez, 504 U.S. 25, 33 (1992); see also Neitzke v. 15 Williams, 490 U.S. 319, 325 (1989) (holding that “§ 1915(d)’s term ‘frivolous,’ when applied to a 16 complaint, embraces not only the inarguable legal conclusion, but also the fanciful factual 17 allegation.”). Plaintiff’s claim that the government has intentionally “poisoned” his water with 18 fluoride for 34 years (since he was born), in order to restrict his liberty, appears to be fanciful, 19 thus lacking an arguable basis in fact. As a result, the complaint should be dismissed as frivolous 20 and without leave to amend. See Lopez v. Smith, 203 F.3d 1122, 1127 n.8 (9th Cir. 2000) (“When 21 a case may be classified as frivolous or malicious, there is, by definition, no merit to the 22 underlying action and so no reason to grant leave to amend.”). 23 Conclusion 24 Accordingly, it is ORDERED that: 25 1. Plaintiff’s application to proceed in forma pauperis (ECF No. 2) is GRANTED; 26 2. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected in 27 accordance with the notice to the California Department of Corrections and Rehabilitation filed 28 concurrently herewith; and wOAOe 2 OU UNV LOUVAIN ER POI OPE PAY OT ME 1 3. The Clerk of the Court shall randomly assign a United States District Judge to this case. 2 Further, it is RECOMMENDED that plaintiff's complaint (ECF No. 1) be DISMISSED 3 | without leave to amend as frivolous. 4 These findings and recommendations are submitted to the United States District Judge 5 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen days 6 | after being served with these findings and recommendations, plaintiff may file written objections 7 || with the court. Such a document should be captioned “Objections to Magistrate Judge’s Findings 8 || and Recommendations.” Failure to file objections within the specified time may waive the right 9 | to appeal the District Court’s order. Turner vy. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); 10 | Martinez v. Yist,951 F.2d 1153 (9th Cir. 1991). 11 | DATED: September 18, 2020. 2 tid, PDEA 13 EDMUND F. BRENNAN 14 UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28